Today, Boston’s federal court has a jury that has begun deliberations. It is the jury which has been sitting through the Sal DiMasi corruption trial. They will review the evidence. They will review the law.

Many of the factual issues are in dispute between the various defense attorneys and the Assistant United States Attorney. They have all suggested points of view as to these disputes. Is what the attorneys have presented to the jury simply spin?

Maybe. Or maybe the arguments were the most important part of the deliberations, although they contained neither judicial instructions or evidence in and of themselves.

Way back when, when I was a Brooklyn prosecutor, I found myself frustrated by the courtroom setting. This was particularly true when trying felony drug cases.
You see, I knew that the undercover officers and supporting police arrest teams had a dangerous job. It was why various precautions were always taken. Defense attorneys would take advantage of things the officers did not do during their cross-examinations. The reasons were often the lack of funds and/or the dangers of the street. However, in the comfortable well-secured courtrooms, words of danger often rang hollow to juries. They could not feel the reality of the situation in that setting.

I started thinking more about juries and their perception. Over the years, and many jury trials, I learned more and more until I came up with a realization that I thereafter have taught various groups, from law students to lawyers.

Basically, particularly in a courtroom, there is no reality. There is only perception of reality.

The jury experiences none of the circumstances about which witnesses speak. Especially in criminal trials. They do not know what the reality of those circumstances feels like. They only know what the witnesses tell them and the surrounding reactions of the other players…the judge and the lawyers. They put these together, along with any minds-eye images they have gathered through the trial and that becomes what convinces them, at least before deliberation, of what the facts are.

The perception of reality.

Experienced trial lawyers know this. We learn how to use it. It is something that can only be learned through practice. The risk is that if you are not successful, you can seem fake. New lawyers who try to mimic other attorneys in their methods, for example, seem fake. This is because every trial attorney must go with his or her own style. If you go with someone else’s style, the same thing happens…you appear fake. Someone trying to play lawyer.

And, believe me, nobody really wants to look like a lawyer to a jury. Particularly one who is disingenuous

An attorney seeming fake to a jury is one of the most damaging things that can happen to a defendant.

I referred to a woman who took the stand in a case in which her son was yet another Boston murder last week. I talked about the fact that the visual was a potent image that the jury would take with them into the jury room. That is a mind’s eye picture. That will stick, along with what their emotional reaction to the testimony was.

Emotion reaction and minds-eye pictures can greatly shape a juror’s overall perception of the evidence.

Jurors are often looking between the lawyers on either side to decide who they can trust. The truth is that the jurors do not know the law. They are frustrated at all the delays and conferences up at the judge’s bench, and they basically do not know what that is all about or why it is necessary. They do look, however, at the attorneys when they leave the bench. Does someone seem unhappy? Does someone seem very confident? These are things that help to shape the jurys’ perception of the advocates and, therefore, the evidence.

This is why a skilled advocate will not react if something goes horribly wrong in front of the jury. The jurors did not prepare the case. They do not know its nuances. They may never recognize what now has the attorney sweating like he/she has malaria. However, if the lawyer shows on his/her face the abject horror he/she is feeling at the development…the jury will know.

Juries may not know the law…but they are not stupid. They can smell a fake and they can recognize fear. Fear means weakness and lessens a jury’s confidence in that advocate..

If you want to have the best chance possible at trial, you had best pick a lawyer who knows these things. As well as someone who knows how to help shape perception.

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